Prof Anne Twomey (University of Sydney)

Pointing
out that current talk of ending male primogeniture and some anti-Catholic
discrimination was merely the latest in a series of attempts to reform
succession, Professor Twomey highlighted the reluctance of recent governments
to actually implement reform – allegedly because of the complexity of dealing
with the realms.

This
reluctance was unfounded. Professor Twomey began with an outline of the Statute
of Westminster, which in 1931 formally recognised that the Dominions of the
Empire possessed full responsible government: the legislatures of the Dominions
now had the power to amend or repeal existing British laws affecting them,
including the Act of Settlement.

To
prevent each Dominion from creating its own rule of succession and thereby
‘bifurcating’ the personage of British crown, two safeguards were enacted.
First, Section 4 of the Statute gave the British Parliament power to legislate
for the Dominions with their consent. Secondly, the Preamble to the Statute
stated that any alteration to the succession would have to be agreed by the
legislatures of all the Dominions and the UK, granting each of the Dominions an
effective veto over changes to the royal succession.

The
Statute of Westminster, argued Professor Twomey, remained the source of much
confusion surrounding the question of the succession and the realms. However,
much had changed within the Commonwealth since the Statute was passed by
Parliament. Nowhere, now, did Section 4 still apply – South Africa was now a
republic, for example, and all other former Dominions had ended the power of
the UK to legislate for them. Any legislation passed in the UK regarding the
succession would not therefore apply in the realms of its own power, though of
course, they might well (and probably would) pass equivalent legislation of
their own.

We
in Britain might ask whether there remained a need to consult with the realms
at all over such matters. Professor Twomey thought that we should, in order
to avoid a potential situation where different monarchs or heirs existed simultaneously across the realms.
This was best understood by looking at the different arrangements in the former
Dominions by which amendment of the rules of succession would be brought about.

In
New Zealand, for example, since the British Act of Settlement was in 1988
effectively converted into New Zealand law, any change in the UK would not automatically apply in New Zealand,
unless they decided otherwise. In Tuvalu, where an eccentric mix of royalism
and popular sovereignty underpinned the constitution, any change in the UK
would in fact automatically apply, unless the Tuvaluan government decided
otherwise (in the name of the Tuvaluan people). Both of these cases indicated
how relatively straightforward any change would be to accomplish in unitary
states.

However,
Australia and Canada – both federal states – presented more worrying obstacles.
For a start, there was the question of precisely how many crowns existed in
Australia. Professor Twomey suggested that since all of the state premiers could
consult the sovereign directly, there could theoretically be a crown for each
state, adding a new layer of complexity to the situation. A blind eye had been
turned to this specific question. In any case, with anti-discrimination laws in
force in each state, it was unlikely that any Australian state would refuse to
go along with the proposed reforms.

In
Canada meanwhile, while we could safely say that there was only one crown, the
Constitution Act of 1982 brought the provincial legislatures into the
constitutional amendment process. That of course created a potential hurdle in
the form of Quebec.

In short,
Professor Twomey concluded by suggesting that the problem was much more
manageable than usually claimed, but we should not be under any illusions about
the obstacles that still persisted. The fundamental problem was not so much obtaining consent to the
(limited) policy change itself but how to get everyone to act with reasonable
simultaneity.

In
the question and answer session that followed, a number of interesting points
were raised, not least about the possible role of Scotland
(as a sort of British Quebec) if the Act of Settlement was to be amended.
Professor Twomey also noted that Australian monarchists were usually supportive
of ending male primogeniture and religious discrimination since it made their
task easier in defending the monarchy to fellow Australians. It was also
wondered whether it would prove viable to abolish only one part of the
religious discrimination in the Act of Settlement without also dealing with the
rest. Concern was voiced over the recently imposed severe freedom of
information restrictions exercised over material relating to the monarch, which
naturally inhibited those – like Professor Twomey – seeking to write about such
important issues.